One of the most influential books that IHS introduced me to when I was in college was Bruno Leoni’s Freedom and the Law (available in pdf here). So I was delighted to have been invited to participate in a program celebrating Leoni’s 100th birthday today at the Cato Institute. Alas, we have been snowed out. So, instead, I will point you to this nifty short video on Leoni’s life and ideas produced by the Bruno Leoni Institute. I hope we will be able to reschedule it at some point in the future.
The video is a nice introduction to two key ideas of Leoni’s. The first is Leoni’s comparison of common law and legislation as law-making systems. Of particular interest here is (as Alberto Mingardi nicely explains) it appears that Leoni had a profound impact on Hayek’s thinking on the common law between The Constitution of Liberty and Law, Legislation, and Liberty. In the Constitution of Liberty (1960), Hayek very focused on the Rechsstaat model of law and the legislative notion of law-making. Then, suddenly and somewhat out of nowhere, the common law emerges as the core organizing principle of Law, Legislation, and Liberty Volume 1, “Rules and Order.” It appears that the key contributor to Hayek’s migration on this point was his introduction to Leoni’s ideas on the common law, especially as elaborated in Freedom and the Law (published in 1961).
The second key idea that comes out in the video is the importance of Leoni’s essay “The Law as Individual Claim” (available as a supplement to the Liberty Fund edition of Freedom and the Law). That essay makes explicit the organizing ideas of Freedom and the Law. This essay is particularly interesting in demonstrating the pernicious influence of legal positivism in changing our understanding from law being a tool of individuals to pursue their goals to the reorientation of law into a vehicle of the state to pursue its goals, which Leoni frames as the contrast between understanding “law as individual claim” versus “law as command.” Leoni argues that getting this conceptual distinction right is a key idea to the preservation of a legal system conducive to individual liberty in the long run.